R v Pelikani - [2014] NZHC 930

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-008694

CRI-2013-092-009565 [2014] NZHC 930

THE QUEEN

v

RICHARD PELIKANI

Hearing: 6 May 2014

Appearances:

R K Thomson for the Crown
A McLean for the Defendant

Judgment:

6 May 2014

SENTENCING NOTES OF WOOLFORD J

Counsel/Solicitors:

Crown Solicitors, Auckland
Public Defence Service, Auckland

R v RICHARD PELIKANI [2014] NZHC 930 [6 May 2014]

Introduction

[1] Richard Pelikani, you appear for sentence today having pleaded guilty to:

(a) one charge of possession of cannabis for supply,1 which carries a maximum sentence of eight years imprisonment;

(b)one charge of driving while disqualified for the third or subsequent time,2 which carries a maximum sentence of two years imprisonment or a fine not exceeding $2,000 and a minimum disqualification from driving for one year or more;

(c) one charge of procuring a passport with false representation,3 which attracts a maximum sentence of five years imprisonment or a $15,000 fine;

(d)two charges of failing to appear,4 which attract a maximum sentence of one year imprisonment or a fine not exceeding $2,000;

(e) one charge of assault with intent to injure,5 which attracts a maximum sentence of three years imprisonment; and

(f) one charge of resisting police,6 which attracts a maximum sentence of three months imprisonment or a fine not exceeding $2,000.

Facts

[2] On 28 July 2012, you were a passenger in a motor vehicle stopped by a police patrol. A bucket containing five snaplock bags was located in the boot of the
car. 179 cannabis tinnies were inside the snaplock bags. A separate snaplock bag

1      An offence against ss 6(1)(f) and 6(2) Misuse of Drugs Act 1975.
2      An offence against ss 32(1)(a) and 32(4) Land Transport Act 1998.
3      An offence against s 32(1) Passport Act 1992.
4      An offence against s 37(a) Bail Act 2000.
5      An offence against s 193 Crimes Act 1961.
6      An offence against s 23(a) Summary Offences Act 1981.

contained 77.4 grams of cannabis head, making a total of 256.4 grams. $2690.00 in cash was also found. You said the cannabis and cash were yours.

[3] On 2 September 2012, you were driving a motor vehicle that was stopped for the purpose of a licence check. It was revealed that you were driving whilst disqualified.

[4] On 6 September 2012 and 26 October 2012, you failed to appear in the

District Court.

[5] On 19 October 2012, you punched Tautala Su’a in the face, knocking him to the ground. He tried to defend himself and you stomped on his head, knocking him unconscious for 10 – 12 minutes. You fled from the scene. You were pursued by police. During the arrest process, you resisted arrest by throwing your body around and charging a constable.

[6] On 23 January 2013, you applied for an urgent passport. You used the name and date of birth of Sio Sateki Vainikolo, gave the names of the mother and father of Sio Sateki Vainikolo, attached your own photograph and signed the application.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Pelikani

Details

AGLC: R v Pelikani [2014] NZHC 930
Case: [2014] NZHC 930
Decision Date: 6 May 2014

CaseChat Overview and Summary

The case before the court involved Richard Pelikani, who faced multiple charges including possession of cannabis for supply, driving while disqualified, procuring a passport with false representation, failing to appear, assault with intent to injure, and resisting police. The court was required to determine the appropriate sentence for each charge and the overall cumulative sentence, taking into account the purposes and principles of sentencing as outlined in the Sentencing Act 2002. The court also needed to assess the aggravating and mitigating factors presented by the parties, and decide on the appropriate starting points and adjustments to those starting points.

The court began by setting starting points for each charge, considering relevant case law and the guidelines provided in R v Terewi for the cannabis possession charge. The court then adjusted the starting points based on aggravating and mitigating factors, including Pelikani's age, his lack of remorse, and his guilty pleas. The court also considered the totality principle, ensuring the final sentence was proportionate to the gravity of the offending. The court decided to sentence Pelikani cumulatively for the cannabis, assault, and passport charges, while ensuring the overall sentence was not disproportionate. The final sentence for each charge was determined, and the court imposed an overall sentence of three years and six months imprisonment, with additional orders for the forfeiture of cash and destruction of cannabis, and a further disqualification from driving.

Orders